US v. Louie Sinclair


AMENDED OPINION filed [998540148] amending and superseding prior opinion. Originating case number: 1:07-cr-00083-JAB-1. Copies to all parties. [08-4272]

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US v. Louie Sinclair Doc. 0 Case: 08-4272 Document: 30 Date Filed: 03/08/2011 Page: 1 AMENDED OPINION UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 08-4272 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. LOUIE GEORGE SINCLAIR, a/k/a Vincent Metallo, Defendant - Appellant. Appeal from the United States District Court for the Middle District of North Carolina, at Durham. James A. Beaty, Jr., Chief District Judge. (1:07-cr-00083-JAB-1) Submitted: August 18, 2008 Amended Opinion Filed: Decided: September 17, 2008 March 8, 2011 Before WILKINSON, NIEMEYER, and SHEDD, Circuit Judges. Affirmed by unpublished per curiam opinion. Louis C. Allen, Federal Public Defender, John A. Dusenbury, Jr., Assistant Federal Public Defender, Greenboro, North Carolina, for Appellant. Anna Mills Wagoner, United States Attorney, Harry L. Hobgood, Angela Hewlett Miller, Assistant United States Attorneys, Greensboro, North Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit. Case: 08-4272 Document: 30 Date Filed: 03/08/2011 Page: 2 PER CURIAM: Louie George Sinclair pled guilty to wire fraud, 18 U.S.C. 1343 (2000), and was sentenced to eighteen months in prison. Sinclair appeals. His attorney has filed a brief pursuant to Anders v. California, 386 U.S. 738 (1967), raising one issue but stating that there are no meritorious issues for review. Sinclair has filed a pro se supplemental brief raising We affirm. * additional issues. I Sinclair asserts that the district court erred when it used the 2001 version of the U.S. Sentencing Guidelines Manual (USSG) in calculating his advisory Guidelines range. We disagree. We note first that, although Sinclair's sentencing hearing took place in February 2008, the district court properly did not use the version of the Guidelines then in effect United because, under Fourth Circuit precedent, see, e.g., States v. Iskander, 407 F.3d 232, 242 & n.8 (4th Cir. 2005), to do so would have resulted in a violation of the Ex Post Facto Clause. The court was obligated to use the Guidelines in effect This opinion is issued following recall of the mandate previously issued. * 2 Case: 08-4272 Document: 30 Date Filed: 03/08/2011 Page: 3 when Sinclair committed the offense. See USSG 1B1.11(a), (b)(1), p.s. (2007). We offense; have stated it that wire on fraud [a] is not an ongoing instead, "occur[s] specific, identifiable occasion[]." Cir. 1991). United States v. Bakker, 925 F.2d 728, 739 (4th Wire fraud "is complete when a transmission is made United States v. to further the overall scheme to defraud." Tulaner, 512 F.3d 576, 579 (9th Cir. 2008); United States v. Carrington, 96 F.3d 1, 7 (1st Cir. 1996). Sinclair committed wire fraud in March 2002, when the transmission in question took place. Accordingly, the district court correctly used the 2001 version of the Guidelines in calculating his advisory Guidelines range, and his base offense level was correctly determined to be 6, see USSG 2B1.1(a). level enhancement for Further, there was no error in the twounauthorized use of a means of identification under USSG 2B1.1(b)(9)(C)(i). II Sinclair contends that the district court erred when it enhanced his offense level by two levels under USSG 3B1.3 for abuse of a position of trust. The record reflects that Sinclair represented to his victim, Beverly Dube, that he was a financial planner and tax preparer and that, in reliance on this representation, Dube permitted Sinclair to prepare and file her 3 Case: 08-4272 Document: 30 Date Filed: 03/08/2011 Page: 4 tax returns for several years, claiming a sizable refund each time. false Dube did not know that the returns contained materially information and claimed refunds to which she was not entitled. Sinclair directed the IRS to wire each refund to a He joint account that he had persuaded Dube to open with him. gave Dube bogus copies of the returns, which showed that she was not due refunds, but instead owed tax. The adjustment applies "[i]f the defendant abused a position of public or private trust, or used a special skill, in a manner that of significantly the offense." facilitated USSG the commission A position or of concealment 3B1.3. "[p]ublic or private trust" means a position "characterized by professional discretionary deference)." or managerial that discretion is ordinarily (i.e., given substantial considerable judgment USSG 3B1.3, cmt. n.1. Whether the defendant held a position of trust must be approached from the perspective of the victim. Cir. 2001). United States v. Godwin, 272 F.3d 659, 671 (4th We of review what de novo the a district position clear court's of legal and interpretation review related constitutes findings trust factual for error. United States v. Ebersole, 411 F.3d 517, 535-36 (4th Cir. 2005). Here, Sinclair represented to Dube that he was a financial planner and that he prepared tax returns for a living. Dube relied on these representations, 4 allowing Sinclair to Case: 08-4272 Document: 30 Date Filed: 03/08/2011 Page: 5 prepare and file her tax returns. Sinclair's representations significantly facilitated the commission of the instant offense, and the enhancement was proper. III Sinclair contends that the district court erred when it refused to depart for a variety of reasons, including his criminal having disorder, history's voluntarily and his over-representing surrendered, being an alien. his his criminal record, his compulsive This court gambling lacks "the authority to review a sentencing court's denial of a downward departure unless the court failed to understand its authority to do so." 2008). United States v. Brewer, 520 F.3d 367, 371 (4th Cir. Because the district court at sentencing recognized that it had the discretion to depart, but elected not to exercise that discretion, its decision not to depart is not reviewable on appeal. IV Sinclair brief. raises a variety of claims in the pro se Because the issues are raised for the first time on See Fed. R. Crim. P. appeal, our review is for plain error. 52(b); United States v. Martinez, 277 F.3d 517, 525 (4th Cir. 5 Case: 08-4272 Document: 30 Date Filed: 03/08/2011 Page: 6 2002). We conclude that Sinclair has not established plain error with respect to any of these claims. V In accordance with Anders, we have thoroughly reviewed the record for any meritorious issues and have found none. therefore affirm. We This court requires that counsel inform his client, in writing, of his right to petition the Supreme Court of the United States for further review. that a petition be filed, but counsel If the client requests believes that such a petition would be frivolous, counsel may move this court for leave to withdraw from representation. Counsel's motion must We state that a copy of the motion was served on the client. dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process. AFFIRMED 6

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